Guidelines on treatment of effect of penalties on promotion — role of Departmental Promotion Committee
No. 22011/4/2007-Estt. (D)
Government of India
Ministry of Personnel, Public Grievances & Pension
Department of Personnel & Training
North Block, New Delhi,
Dated the 28th April, 2014
OFFICE MEMORANDUM
Subject:
Guidelines on treatment of effect of penalties on promotion — role of Departmental Promotion Committee
The Department of Personnel & Training had in its O.M.
No.22011/5/86-Estt (D) dated 10.04.1989 issued consolidated instructions
on Departmental Promotion Committee and matters related thereto. Para
6.2.3 of said O.M. provides that “before making the overall grading
after considering the CRs for the relevant years, the DPC should take
into account whether the officer has been awarded any major or minor
penalty or whether any displeasure of any superior officer or authority
has been conveyed to him as reflected in the ACRs.” These guidelines
further provide that “the DPC should not be guided merely by the overall
grading, if any, that may be recorded in the ACRs (now APARs) but
should also make its own assessment on the basis of entries in the CRs
(now APARs) because it has been noticed that sometimes the overall
grading in a ACR (now APAR) may be inconsistent with the grades under
various parameters or attributes”.
2. It further provides that an officer whose increments have been
withheld or who has been reduced to a lower stage in the time scale,
cannot be considered on that account to be ineligible for promotion to
the higher grade as the specific penalty of withholding promotion has
not been imposed on him/her. The suitability of the officer for
promotion should be assessed by the DPC as and when occasions arise for
such assessment. In assessing the suitability, the DPC will take into
account the circumstances leading to the imposition of the penalty and
decide whether in the light of the general service record of the officer
and the fact of the imposition of the penalty he should be considered
suitable for promotion. However, even where the DPC considers that
despite the penalty, the officer is suitable for promotion, the officer
should not be actually promoted during the currency of the penalty.
3. Further this Department’s O.M. No. No.22034/5/2004-Estt (D) dated
15.12.2004 provides that a Government servant, on whom a minor penalty
of withholding of increment etc. has been imposed, should be considered
for promotion by the Departmental Promotion Committee which meets after
the imposition of the said penalty and after due consideration of full
facts leading to imposition of the penalty, if he is still considered
fit for promotion, the promotion may be given effect after the expiry of
the currency of the penalty.
4. The procedure and guidelines to be followed for promotion of
Government servants against whom disciplinary/court proceedings are
pending or whose conduct is under investigation has been laid down in
this Department’s O.M. No.22011/4/91-Estt(A) dated 14.9.92 and O.M.
No.22034/4/2012-Estt (D) dated 02.11.2012 and 23.1.2014.
5. The role of Departmental Promotion Committee(DPC) in assessment of
the officers being considered for promotion, including the officer(s)
against whom a chargesheet has been issued or on whom a penalty has been
imposed, has been examined by the Supreme Court in several judgments.
The observations of Supreme Court in some of the important cases are
summarized as under:
(a) In A.K. Narula case (AIR 2007 SC 2296), the Hon’ble Supreme Court has observed:
“the guidelines give a certain amount of play in the joints to the DPC
by providing that it need not be guided by the overall grading recorded
in the CRs, but may make its own assessment on the basis of the entries
in the CRs. The DPC is required to make an overall assessment of the
performance of each candidate separately, but by adopting the same
standards, yardsticks and norms. It is only when the process of
assessment is vitiated either on the ground of bias, malafide or
arbitrariness, the selection calls for interference. Where the DPC has
proceeded in a fair, impartial and reasonable manner, by applying the
same yardstick and norms to all candidates and there is no arbitrariness
in the process of assessment by the DPC, the court will not interfere”.
(b) In Union of India vs. K.V. Jankiraman case(AIR 1991 SC 2010), the
Supreme Court has taken cognizance of role of DPC the case of an officer
on whom a penalty has been imposed and has held that:
“An employee has no right to promotion. He has only right to be
considered for promotion. The promotion to a post and more so, to a
selection post, depends upon several circumstances. To qualify for
promotion, the least that is expected of an employee is to have an
unblemished record. That is the minimum expected to ensure a clean and
efficient administration and to protect the public interest. An employee
found guilty of misconduct cannot be placed on par with the other
employees, and his case has to be treated differently……. In fact, while
considering an employee for promotion his whole record has to be taken
into consideration and if a promotion committee takes the penalties
imposed upon the employee into consideration and denies him the
promotion, such denial is not illegal and unjustified.”
(c) In UOI & Anr. Vs. S.K. Goel & Ors. (Appeal (Civil) 689/2007
-SLP(C)-2410/2007), the Hon’ble Supreme Court has held that:
“DPC enjoyed full discretion to devise its method and procedure for
objective assessment of suitability and merit of the candidate being
considered by it. Hence interference by High Court is not called for. ”
While delivering the above judgement, the Division Bench has observed that:
“…it is now more or less well settled that the evaluation made by an
Expert Committee should not be easily interfered with by the Court which
do not have the necessary expertise to undertake the exercise that is
necessary for such purpose.”
6. It has been brought to the notice of this Department that DPCs
have been adopting varying criteria in assessment of officials
undergoing penalty that are not consistent with the extant instructions
of the DOPT for e.g., downgradation of grading in ACR/APAR, denying
promotion for specified number of years, etc.
7. The matter has been examined in consultation with the Department
of Legal Affairs. It is a settled position that the DPC, within its
power to make its own assessment, has to assess every proposal for
promotion, on case to case basis. In assessing the suitability, the DPC
is to take into account the circumstances leading to the imposition of
the penalty and decide, whether in the light of general service record
of the officer and the effect of imposition of penalty, he/she should be
considered suitable for promotion and therefore, downgradation of APARs
by one level in all such cases may not be legally sustainable.
Following broad guidelines are laid down in respect of DPC:
a) DPCs enjoy full discretion to devise their own methods
and procedures for objective assessment of the suitability of
candidates who are to be considered by them, including those officers on
whom penalty has been imposed as provided in DoPT O.M. dated 10.4.89
and O.M. dated 15.12.2004.
b) The DPC should not be guided merely by the overall grading, if
any, that may be recorded in the ACRs/APARs but should make its own
assessment on the basis of the entries in the ACRs/APARs as it has been
noticed that sometimes the overall grading in a ACR/APAR may be
inconsistent with the grading under various parameters or attributes.
Before making the overall recommendation after considering the APARs
(earlier ACRs) for the relevant years, the DPC should take into account
whether the officer has been awarded any major or minor penalty.
(Refer para 6.2.1(e) and para 6.2.3 of DoPT OM dated 10.04.89)
c) In case, the disciplinary/criminal prosecution is in the
preliminary stage and the officer is not yet covered under any of the
three conditions mentioned in para 2 of DoPT O.M. dated 14.09.1992, the
DPC will assess the suitability of the officer and if found fit, the
officer will be promoted along with other officers. As provided in this
Department’s O.M. dated 02.11.2012, the onus to ensure that only person
with unblemished records are considered for promotion and disciplinary
proceedings, if any, against any person coming in the zone of
consideration are expedited, is that of the administrative
Ministry/Department.
d) If the official under consideration is covered under any of the
three condition mentioned in para 2 of O.M. dated 14.09.1992, the DPC
will assess the suitability of Government servant along with other
eligible candidates without taking into consideration the disciplinary
case/criminal prosecution pending. The assessment of the DPC including
‘unfit for promotion’ and the grading awarded are kept in a sealed
cover. (Para 2.1 of DoPT OM dated 14.9.92).
e) Para 7 of DoPT OM dated 14.09.92 provides that a Government
servant, who is recommended for promotion by the DPC, but in whose case,
any of the three circumstances on denial of vigilance clearance
mentioned in para 2 of ibid O.M. arises after the recommendations of the
DPC are received but before he/she is actually promoted, will be
considered as if his/her case had been placed in a sealed cover by the
DPC. He/she shall not be promoted until he/she is completely exonerated
of the charges against him/her.
f) If any penalty is imposed on the Government servant as a result of
the disciplinary proceedings or if he/she is found guilty in the
criminal prosecution against him/her, the findings of the sealed
cover/covers shall not be acted upon. His/her case for promotion may be
considered by the next DPC in the normal course and having regard to the
penalty imposed on him/her (para 3.1 of DoPT OM dated 14.9.92).
g) In assessing the suitability of the officer on whom a penalty has
been imposed, the DPC will take into account the circumstances leading
to the imposition of the penalty and decide whether in the light of
general service record of the officer and the fact of imposition of
penalty, the officer should be considered for promotion. The DPC, after
due consideration, has authority to assess the officer as ‘unfit’ for
promotion. However, where the DPC considers that despite the penalty the
officer is suitable for promotion, the officer will be actually
promoted only after the currency of the penalty is over (para 13 of DoPT
OM dated 10.4.89).
h) Any proposal for promotion has to be assessed by the DPC, on case
to case basis, and the practice of downgradation of APARs (earlier ACRs)
by one level in all cases for one time, where a penalty has been
imposed in a year included in the assessment matrix or till the date of
DPC should be discontinued immediately, being legally non-sustainable.
i) While there is no illegality in denying promotion during the
currency of the penalty, denying promotion in such cases after the
period of penalty is over would be in violation of the provisions of
Article 20 of the Constitution
j) The appointing authorities concerned should review comprehensively
the cases of Government servants, whose suitability for promotion to a
higher grade has been kept in a sealed cover on the expiry of 6 months
from the date of convening the first Departmental Promotion Committee
which had adjudged his suitability and kept its findings in the sealed
cover. Such a review should be done subsequently also every six months.
The review should, inter alia, cover the progress made in the
disciplinary proceedings/criminal prosecution and the further measures
to be taken to expedite the completion. (Para 4 of O.M. dated
14.09.1992)
k) In cases where the disciplinary case/criminal prosecution against
the Government servant is not concluded even after the expiry of two
years from the date of the meeting of the first DPC which kept its
findings in respect of the Government servant in a sealed cover then
subject to condition mentioned in Para 5 of this Department’s O.M. dated
14.09.1992, the appointing authority may consider desirability of
giving him ad-hoc promotion (Para 5 of this Department’s O.M. dated
14.09.1992).
8. All the administrative authorities in the Ministries/Department
are advised to place relevant records, including chargesheet, if any,
issued to the officer concerned, penalty imposed, etc., before the
DPC/ACC who will decide the suitability of officer for promotion keeping
in view the general service records of the officer including the
circumstances leading to the imposition of the chargesheet or penalty
imposed. If such an officer is found suitable, promotion will be given
effect after the currency of the penalty is over.
9. All Ministries/Departments are, therefore, requested to keep in
view the above guidelines while convening DPC for promotion of the
Government servants on whom either penalty has been imposed or where
there are adverse remarks in the reckonable ACRs/APARs.
sd/-
(Mukta Goel)
Director
Source: www.persmin.nic.in
[http://ccis.nic.in/WriteReadData/CircularPortal/D2/D02est/22011_4_2007-Estt.D-28042014.pdf]
